The nature of a dispute “will have a significant impact on the success or failure of a mediation attempt,” and “unfavorable dispute characteristics are likely to defeat even the most adroit mediators.”

The Bercovitch and Langley report cited above focuses on “how the characteristics of a dispute” affect mediation effectiveness in resolving international disputes. Their report creates findings, reaches conclusions, and results in a set of policy implications for mediators.

What implications might their study have for mediation of disputes between private parties?

Bercovitch and Langley note that “much of the existing” literature on international mediation “places enormous” and undue emphasis on attributes of the mediator “as the key” to successful mediation: “as if other factors cannot, or do not,” play a role.

Additionally, they insist that “some disputes can be mediated successfully,” while other disputes seem to “frustrate the efforts of many diverse mediators.”

Their Information

Their report begins with the following information:

–An international dispute is defined as “a continuous clash” between two or more states involving “at least 100 fatalities.”

–The study is based on “97 international disputes from 1945-1990” and utilizes information on “opening and closing dates, issues, presence of allies or others, fatalities, and other contextual variables,” including “the means and manner of dispute termination.”

–Dispute terminations are divided into “violence, obsolescence, negotiation, mediation, and termination by regional or international organizations.”

–The 97 disputes “experienced 364 separate mediation attempts,” with some disputes experiencing “no mediation at all,” while others “experienced one or two attempts,” and others with “more than 15” different attempts.

Unfortunately, international mediation is not highly successful in achieving positive results. Bercovitch and Langley report that, of all the mediation attempts they studied:

–71.9% are unsuccessful, having “no discernible impact on the subsequent behavior of the parties”; while

–29.1% achieve “some degree of success,” such as a temporary cease fire or a complete cessation of hostilities.

Their Impact Analysis

Bercovitch and Langley focus their analysis on the impact of “three general aspects” of a mediated dispute.

Intensity

They posit that “high-intensity disputes are unlikely to experience successful mediation” and focus on “the number of fatalities in a dispute” as their measure of intensity.

Duration

They assume that “a crucial moment” will occur “in the life cycle of a dispute” when a mediation is “most likely to succeed” but acknowledge that the “exact nature” of such a moment is “of considerable speculation.”

Issues

Issues “at the heart” of a dispute are significant “in determining the outcome of mediation.” They focus on two characteristics of issues: (a) their “substantive nature,” and (b) their “number and complexity.”

Their Findings

Bercovitch and Langley find that the nature of the dispute “is clearly a major determinant of mediation outcomes.” For example:

–“There is a clear, positive relationship between low fatalities and successful mediation outcomes”; and

Their Conclusions

High intensity, as measured by high fatalities, encourages “further hostility and contentious behavior” and diminishes “the likelihood of mediation effectiveness.”

“Dispute complexity, which in any event is associated with lengthy, protracted conflicts and higher fatalities, also appears to be incompatible with successful mediation.”

Dispute duration “has a strong inverse relationship with successful mediation, but only when it combines with fatalities and complexity.”

“[I]ntensely hostile disputes, with many issues at stake and high fatalities, are not particularly amenable to mediation any more than they are to negotiation, adjudication or even the intervention of an international organization.”

Their Policy Implications for Mediators

Mediators can enhance the likelihood of an agreement, Bercovitch and Langley conclude, by:

–“reducing or repackaging the number of issues in dispute”;

–“focusing on tangible rather than intangible issues”;

–“initiating mediation once the disputants have had some time to sort out their conflict, but long before the level of hostility and fatalities get too high”; and

–“pursuing mediation strategies that can be adapted to the demands of different disputes.”

Summary

The Bercovitch and Langley findings and conclusions and policy implications are fascinating and may have an application in the normal world of mediating disputes between private parties.

** If you find this article of value, please feel free to share. If you’d like to discuss, let me know.

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My name is Donald L. Swanson (please call me “Don”). I’m an attorney in Omaha, Nebraska, and am a shareholder in the law firm of Koley Jessen P.C., L.L.O. I’ve been practicing business bankruptcy law for more than three decades and represent all types of bankruptcy constituencies, including debtors, creditors, committees, trustees, and § 363 purchasers.
I have extensive mediation experience in both bankruptcy and non-bankruptcy courts. Moreover, I have a decades-long background in resolving multi-party disputes while representing committees and trustees.
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